Hallsmith Co., Inc.

HALLSMITH COMPANY, INC. 275 Hallsmith Company, Inc. and General Truck Drivers Union Local 653, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 1-CA-10069 January 23, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on September 3, 1974, by General Truck Drivers Union Local 653, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Hallsmith Company, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint on September 30, 1974, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges ' in substance that on August 21, 1974, following a Board election in Case 1-RC- 12828, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 2 and that, commencing on or about August 28, 1974, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On October 7, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On October 25, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, submitting, in effect, that Respondent by its answer to the complaint was raising an issue which had been raised and litigated in the underlying representation proceeding and accordingly could not be relitigated herein. Subse- quently, on November 12, 1974, the Board issued an order transferring the proceeding to the Board and a i In the absence of opposition , we grant the General Counsel 's motion that pars. 12 and 13 of the complaint be deleted. 2 Official notice is taken of the record in the representation proceeding, Case 1-RC-12828, as the term "record" is defined in Secs. 102.68 and 102.69(1) of the Board's Rules and Regulations, Series 8, as amended. See 216 NLRB No. 47 Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent has filed no response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint, Respondent asserts that the certification issued the Union in the underlying representation proceeding is invalid because the Union prejudiced the results of the election therein by offering a substantial reduction of its initiation fee if it won the election. In view of the General Counsel's contention that this issue was raised and litigated in the representa- tion proceeding, we have reviewed the record thereof. It appears that, following the Union's victory in the election, Respondent filed timely objections to conduct affecting the results of the election alleging that the Union had offered to substantially reduce its regular initiation fee to employees if it won the election, and that if it won the election the employees who had paid the reduced fee could procure higher paying employment with employers other than Respondent. After an investigation, the Regional Director issued a Report on Objections, in which he found no merit in Respondent's objections and recommended that they be overruled. Upon Re- spondent's exceptions to this report, we adopted the Regional Director's recommendation that the second objection be dismissed, and ordered that a hearing be held on Respondent's first objection concerning the Union's offer to reduce its initiation fees as it raised a substantial question in light of the Supreme Court's decision in Savair Manufacturing Company v. N.L.R.B., 414 U.S. 270 (1973). Following a hearing at which the parties appeared and presented evidence, the Hearing Officer issued a Report and Recommen- dations, essentially finding the Union's offer to reduce its fee was not conditioned on employee support, and recommending that the objection be overruled. Respondent filed timely exceptions to this report in which it attacked primarily the credibility resolutions made by the Hearing Officer. On August 21, 1974, we issued a Supplemental Decision and Certification of Representative in which we adopted LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd. 388 F 2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 F.2d 26 (C.A 5, 1969), Intertype Co v. Penello, 269 F.Supp 573 (D.C Va, 1957); Follett Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C A. 7, 1968), Sec. 9(d) of the NLRA. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Hearing Officer's findings, conclusions, and recommendations, and certified the Union. It appears from the foregoing review that Respond- ent raised and fully litigated the issue raised herein by its answer to the complaint in the underlying representation case, and it may not relitigate it again, as it is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, a Massachusetts corporation with its principal office and place of business at 56 Oak Hill Way, Brockton, Massachusetts, is and at all times material hereto has been engaged in the wholesale distribution of food and related products. In the course and conduct of its business Respondent annually receives goods and materials at its Brockton facility valued in excess of $50,000 which are shipped to said plant directly from States other than the Commonwealth of Massachusetts. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED General Truck Drivers Union Local 653, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time warehouse employees employed by the Employer at its Brockton, Massachusetts, facility, including all drivers and the janitor, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act.4 2. The certification On August 23, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 1 designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on August 21, 1974, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about August 23, 1974, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about August 28, 1974, and continu- ing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since August 28, 1974, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respond- ent has engaged in and is engaging in unfair labor 3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); stipulated to by the parties and approved by the Regional Director Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c). Accordingly, that phrase is hereby deleted from the unit description in the 4 Through an inadvertent error , the unit description appearing in the certification issued the Union in Case 1-RC-12828, and the proper certification contains the phrase "who were employed during the payroll description of the appropriate unit therein reads as appears above. period ending Saturday, July 28, 1973," which was not contained in the unit HALLSMITH COMPANY, INC. 277 practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commer- ce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Hallsmith Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Truck Drivers Union Local 653, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time warehouse employees employed by the Employer at its Brock- ton, Massachusetts, facility, including all drivers and the janitor, but excluding all office clerical employ- ees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since August 23, 1974, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 28, 1974, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Hallsmith Company, Inc., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with General Truck Drivers Union Local 653, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time warehouse employees employed by the Employer at its Brockton, Massachusetts, facility, including all drivers and the janitor, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Brockton, Massachusetts, facility copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Gener- al Truck Drivers Union Local 653, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All full-time and regular part-time ware- house employees employed by the Employer at its Brockton, Massachusetts, facility, including all drivers and the janitor, but excluding all office clerical employees, pro- fessional employees, guards and supervisors as defined in the Act. HALLSMITH COMPANY, INC.